SECRET LEGAL WISDOM

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Elements of Persuasion 

 

Logic, evidence (Logos)

This is what Aristotle considered the “proper task” of argument, because it tends to be the least subjective and most convincing element of rhetoric. As mentioned earlier, it is the weight of evidence that tips the scales in Lady Justice’s hand. Ensuring that weight is properly considered is the advocate’s role, but it is the weight of the logos, evidence, that will win the day.

 

In general, judges and jurors like their data hard. They are impressed by phone records, x-ray slides, photographs, bill statements and contracts and the like.

 

Emotional appeal, (Pathos)

The successful litigant must seize upon a judge or juror’s emotions, creating a certain gut-level appeal to win them over to his argument. If she is skillful, she can also arouse fear or hostility toward her opposition even while drawing back warm fuzzy sympathetic feelings toward her position.

 

“Forensic psychologists,” writes  Houston lawyer Howard L. Nations. “Tell us that jurors make decisions on emotion and then sift through the evidence in order to validate their emotional responses with logic. In other words, jurors make a decision with their right brain and validate it with their left brain.” [1] 

 

Credibility, believability (Ethos)

Establishing credibility is the litigant’s first task in presenting a case and is really an extension of the rule of first impressions (see below). Until that credibility can be accomplished, it is impossible to take the eyes of judge and jury off the litigant and fix them on the evidence where they should be directed. The litigant must assert herself as one who is authentically trustworthy, fair-minded, and believable.

 

A person with credibility is also a fair and respectful person and demonstrates this by treating his opponent’s case as important and by respecting the wishes and instructions of the judge. She also shows she is fair by not wasting the jury’s or the court’s time with trivial detours and unimportant detail. These are some of the traits a judge or jury will see in the credible litigant:

 


-        Well-dressed, appropriately attired

-        Is repetitive (as permitted)

-        Stands to speak

-        Is polite, respectful

-        Is truthful

-        Engages the judge/jury’s attention with good posture and eye contact

-        Is direct and to the point

-        Is organized

-        Faces the person being addressed


 

During trial, the persuasive litigant operates in the judge or juror’s frame of reference rather than forcing the opposite. To enhance your persuasive abilities, try as early as possible to determine the frames of reference for the judge and jury. Observe the judge in pretrial activities if you can and evaluate the jurors as individuals during jury selection. Listen to their language for any clues to what would be important. The more you can learn and discover about the jurors and judges presiding over your case, the better you can enhance their perceptions of similarities, one of the keys to persuasion. Again, it is always better to operate within their frames of reference than to require them to operate in yours.

 

The litigant must be constantly aware of her message and presentation, specifically, how that message is registering on her target audience, the judge and jury. By employing a balanced presentation, concentrating rhetorical effort at each of Aristotle’s three elements, the litigant will deliver a compelling, persuasive case and all but ensure victory in court. 
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